53 F. 850 -

53 F1d 850

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Case Text

'850

FEDERAL BEPOBTER;voL· 53.

".

the record was :filed in due time in this court. On December 14, 1892, N. W. [email protected], :Esq., en.teredhis appe'arance; iI1r:th;is court for plaintiffs in the same, day a briefforplai:n,tiffs in error, submitted by Ben. B. Cain, Esq., (W. J. '1'owilsend's and W. S. Herndon's in the brief as of'counsel,) was presented and filed. names On December 21, 1892, the case was submitted on brief of plaintiffs in error, with -leave to defendant in error to :file a brief within 15 days. In the brief of plaintiffs in error no reference is made to the first specification in the assignment of errors filed in the circuit court by the plaintiffs in error Wharton Branch and George J. Collins. It is expressly stated in the brief of plaintiffs in error that "said cause is now presented to this court for consideration on the specifications of error hereinafter set forth _ -discussed;" which specifications of and error thereinafter set forth and discussed are the second, third, and fourth -specifications of error in the respective assignments of error, which specifications are substantially identical in each of said Msignquestion raised on the pleadings or record in men1;s,and,relate to no _ the case, but all refer to rulings of the ,court on the trial, eMepted to at the and presented by a bill of exceptions. This may well be taken as a,' clear abandonment of the first specification of error 38signed by Wharton Branch and George J.Collins, relating to the action of the eourtin sustaining an exception to so much of their amnVf>l' as set up that Lewis and Henry Rueg were aliens to the governlllent of Mexico in 1835, and could not then acquire title to said property; especiaUy as the specifications urged all relate to the action of tb e court in reference' to the transmission by descent, and conveyance by his heirs, of Henry Rueg's title. There is in the record no verdict of a jury. It is manifest that the case was tried without a jury. There is nothing in the record from which it affirmatively appears or can reasonably be Msumed that the parties or their attorneys of record filed with the clerk a stipulation in writing waiving a jury. Rev. St. U. S. § 649. It is well settled that in actions at law in the circnit courts of the United States, when a trial is had without a jury, if a written stipulation waiving a jury is not in some way affirmatively shown in the record, none of the questions decided at the trial can be re-examined on writ of error. Bond v. Dustin, 112 U. S. 604, 5 Sup. Ct. Rep. 296; County of Madison v. Warren, 106 U. S. 622, 2 Sup. Ct. Rep. 86; Oampbell v. Boyreau, 21 How. 223, and other CMes cited in Bond v. Dustin. For the foregoing reasons, and without passing on any of the questions presented by the Msignments of eITor, the judgment is affirmed.

Persons not parties to a suit cannot appear In it, but those belonging to a class represented In the case. such as bondholders In a foreclosure suit

1

Reported by Peter J. Hanillton, of the Mobile, Ala., bar.

FIDELITY TRUST &: SAFETY VAULT CO. tI. MOBILE ST. RY. CO.

851

brought by the trustee ot the mortgage, are regarded as quasi parties, and may be heard for the purpose of protectiIlg their interest.
2.

SAME-SERVICE BY SUBSTITUTION.

In such case service may, by leave of court, be had on the attorney for the complainant, when the complainant is beyond the jurisdiction of the court.

S.

SAME-RELIEF SOUGHT MUST BE GERMANE.

The relief sought under substituted service must be germane to the suit, and must not be under new facts, not set out in the bill, and made the basis for independent affirmative relief, as to which the attorney is not retained.

4. EQUITY-CROSS BILL-PROVINCE OF.

A cross bill is auxiliary to the original proceeding, and can be sustained only on matters gruwing out of the bill, and embraced in it. Unless the cross bill seeks either discovery or complete relief as to subject-matter of the bill, it becomes itself an original bill.

5. SAME-DAMAGES-FoRECLOSURE SUIT.

A petition seeking to recover damages from the trustee for maladministration of the trust cannot befiied as a cross bill in a proceeding for the foreclosure of the deed of trust. .

6. SAME-SETTING ASIDE SUBSTITUTED SERVICE. An order giving leave to serve a cross bill by substitution may be set

aside when improvidently made.

7.

PRACTICE-SERVICE OF NONRESIDENT.

When II. nonreSident corporation is not doing business in the jurisdiction, service on the president, temporarily present in the district, is not effective in Ala-bama.

In Equity. Bill by the Fidelity Trust & Safety Vault Company against the Mobile Street·Railway Company to foreclose a mortgage. .A. petition in the nature of a cross bill was filed by F. J. Gasquet awl others, tOlicholders under the mortgage, to recover flamages against the trr flt company for improper execution of the tl'lI:'lt. By lC:'Rve of court, substituted service of the petition was had t:P% aJtorney, and also upon the president of the coanpany, while temporarily in the state. Heard on motion to set aside the service. Granted.
Clark & Clark and Overall, Bestor & Gray, for the motion. G. L. & H. T. Smith and McCaleb & Lapeyre, opposed. TOULMIN, District Judge. Persons who are not parties to a BUit cannot, in general, file a petition therein, for any cause. But persons belonginK to a class represented in the suit, such as mortgage creditors represented by the trustees of the mortgage, are regarded as quasi parties, and may be heard on petition or motion. Anderson v. Railroad Co., 2 Woods, 628. In suits brought by a trustee, or otherwise affecting trust property, the beneficiaries of the trust will frequently be allowed to intervene, for the purpose of protecting their interest. Fost. Fed. Pl'. 291; Carter v. City of New Orleans, 19 Fed. Rep. 659. In such cases, by leave of the court, service may be had by substitution upon the attorney for complainant, when the complainant is beyood the jurisdiction of the court. Lowenstein v. Glidewell, 5 Dill.325; Rubber Co. v. Goodyear, 9 Wall. 807; Bowen v. Christian, 16 Fed Rep. 730.

852

FEDERAL REPOR'.rER,

vol. 53.

It Was in view of these principles that the order for substituted. service was made in this case, and on the idea that the paper termed a "petition in the nature of a cross bill" was in fact a petition of intervention. But the application of the rule for substituted service is denied to cross bills setting up facts not alleged in the original bill, and which new facts, though they relate to the subject-matter of the original bill, are made the basis for affirmative relief. Lowenstein v. Glidewell, supra; Rubber Co. v. Goodyear, supra. If the service relates to a new and independent action in which the attorney has not been specially retained, it is not good. If the paper called a cross bill is in fact not a cross bill, but is really an independent bill, the substituted service upon the attorney is not good. Bowen v. Christian, supra; Rubber Co. v. Goodyear, supra; Railroad Co. v. Bradleys, 10 Wall. 299. A.cross bill can be sustained only on matters growing out of the original bill,and embraced in it. It cannot be used as a means of obtaining relief in respect to a cause of action wholly unconnected wit4 the cqmplainant's cause of action. Neal v. Foster, 34 Fed. Rep. 496; nubber Co. v. Goodyear, supra; Manufaduring Co. v. Prime, 14 Blatchf. 371; Cross v. De VaIle, 1 Wall. 1; 1 Story, Eq. PI. § 389; Stonemetz Printers' Mach. 00. v. Brown Folding Mach. Co., 46 Fed. Rep. 851.. In this last case the court says:
".A. oross bill implies a bill brought by a defendant against the plaintiff in the same suit, touching the matter in question in the original bill. It is brought either 1A obtain a discovery of facts in aid of the defense to the original bill, or to obtain full and complete relief to all parties as to the matter chal'J;ed in the original bill. It should not introduce new and distinct matters not embraced in the original bill, as they cannot be properlr examined in that suit, but .constitute the subject-matter of an original, independent suit. The cross bill is auxiliary to the proceeding in the original suit, and a dependency upon it. its purpose be di1rerent from this it is not a cross bill, though it Illay have a ·connection with the same general subject. A cross bill must bl;l confined to the subject-matter of the original bill. If it introduce new matter not ell1braced in the original bill, it becomes itself an original bill. 0'

o

The purpose of the origii:l.al bill in this case is to foreclose a mortgage executed by the defendant to the complainant as trustee for the holders of defendant's bonds. The petition in the nature of a cross bill, filed by F. J. Gasquet and others of said bondholders, is chiefly for the purpose of recovering damages of the complainant for alleged negligent or improper execution of the trust, and by which it is claimed petitioners sustained large damages. This petition pre'!!ented as a cross bill offends against the well-settled rule which forbids the introduction into such a bill of any new and distinct mattel' not within the scope of the original bill. 'ilie matter set up in the cross bill is not necessary as a defense to the original bill, but is indeed matter entirely foreign to the primary object of the bill. My opinion is that it is really an original, independent bill; that the sUDstituted service on it is invalid, and should be set aside, and that the order authOlrizing such service was improvidently granted, and should be set aside. An order giving leave to serve a cross bill by substitution may oe set aside. Bowen v. Christian, supra; Rogers v. Riessner, 31 Fed Rep. 591.

PINE LAKE IRON CO.

v.

LA FAYETTE CAR WORKS.

853

My opinion, further, is that the service of process on John D. Taggart as president of the Fidelity Trust & Safety Vault Company (complainant) was, under the circumstances shown by the evidence, irregular, and not warranted by law; that the company was not at the time of such service doing business in this state, in contemplation of the laws thereof, and that the service was not a valid service under the laws of the state. The motion to set aside said service is sustained. An order will be entered in accordance with the views h l'ein expressed.
PIX!!. LAKE IRON CO. v. LA FAYETT.E CA.R WORKS, (ADAMS, Intervener.)

(Circuit Court, D. Indiana. January 11, 1893.)
No. 8,677.

1.

RECEIVERS-ALLOWANCE OF CLAIMS-JUDGMENTS IN PENDING ACTIONS.

A suit commenced hefore thP. appointment of a receiver of the debtor's property, upon a claim afterwards filed, witWn the time limited, against the receiver, lllay be prosecuted to judgment, which, when rendel,"ed, establiRhes as against the receiver the amount of the claim. ·Where a receiver knows of the pendent'y of a suit on a claim which Is afterwards filed against him, a failure to ,refer to the pending suit at the time of filing the claim does not cause a waiver of the right to prosecute thl.' action, or constitute an t'!ection of remedies.

2.

SAME-ELECTION OF REMEDIES.

8.

SAME-COSTS.

In such case, however, the receiver should not be charged with the costs both of the Suil; and of the investigation before the master, and the creditor should only be allowed the amount of his judgment, exclusive of costs.

Petition of intervention by B. F. Adams in the suit of the Pine Lake Iron Company against the La Fayette Car Works for the purpose of establishing a claim against the receiver. Decree for intervener. Stanton & Scott and J. L. McMaster, for petitioner. Stuart Bros., for receiver. A. C. Harris, for general creditors. WOODS, Circuit Judge. When the receiver was appointed the intervener had a suit pending in one of the courts of New York for the same demand that is in question here. In pursuance of the notice requiring that claims against the receiver be filed here within a time limited, the intervener presented the claim here, saying nothing of the .suit in New York, and it was referred to the master for proof. Haying obtained judgment in the New York court, the intervener obtained leave of the master, subject to exceptions, to amend his statement ()f the claim so as to show the recovery of the judgment, and, having put in evidence a transcript of the judgment., claimed that it was conclusive evidence of the amount of his claim. 'fhe master held that it was neither conclusive nor prima facie evidence, and upon the merits reported against the petitioner. The authorities cited on the subject recognize the right of one who 'has commenced a suit before the appointment of a receiver of the